ANTI- DEFECTION LAW

BY: MOHAMMAD ASAD MAHMOOD

TEERTHANKER MAHAVEER UNIVERSITY, MORADABAD U.P

B.B.A LL.B (H) 5TH YEAR 9TH SEMESTER

(Online Intern @LawOF)

The 10th Schedule to the constitution popularly known as the “Anti-Defection Law” was inserted by the 52nd Amendment in 1985. It laid down the process by which legislators may be disqualified on grounds of defection.

As per the provisions a Member of Parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That means they can’t vote on any issue in contravention of the party’s whip of which they belong. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party can join a party within six months; after that, they will also be treated as a party members or independent members.

The law also made certain exceptions. Any person who is elected as speaker or chairman may resign from his party, and rejoin the party if he demitted that post. A party can be merged with other party if at least two-third of its party legislators voted for the same. The law initially permitted splitting of parties, but that has now been outlawed.

According to the law on defection of elected members, the whip can send a petition on the alleged defection to the chairman or the speaker of a house for their disqualification. He can also expel the members from the party. But this does not mean that the members so expelled lose their seat in the house. They continue to hang on their seat as long as the chairman or speaker of a house gives a final decision on their disqualification from the house after a proper enquiry on the basis of the petition filed by the party whip. The decision on questions as to disqualification on grounds of defection is referred to the chairman or the speaker of such house and his decision is final. All proceedings in relation to any question on disqualification of a members of house under this schedule are deemed to be proceedings in the parliament or in the legislature of a state. No court has any jurisdiction.

CHALLENGES AND INTERPRETATIONS

The anti-defection law raises number of questions, several of which have been addressed by the courts and the presiding officers.

Does the law impinge on the right of free speech of the legislators? This question was addressed by the five judge bench of the supreme court in 1992 (Kihoto Hollohan vs. Zachlhu and others.). The court held that “the anti-defection law seeks to recognize the practical need to place the properties of political and personal conduct….above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.

What constitutes the member ‘voluntarily’ giving up of membership of a party? The Supreme Court, in the (Ravi Naik vs. Union of India) case interpreted the phrase ‘voluntarily gives up his membership’. It says: “the words ‘voluntarily gives up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. “Even in the absence of a formal resignation from membership, an interference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

In another judgment in the case of (Rajendra Singh Rana vs. Swami Prasad Maurya and Others.), the supreme court held that the act of giving a letter requesting the governor to call upon the leader of the other side to form a government itself would amount to an act of giving up membership of the party on whose ticket the said members had got elected.

Can the decisions of presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the high court’s and Supreme Court.

ISSUES FOR CONSIEDRARTION

Should the law be valid for all votes or only for those that determine the stability of the government? The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of the office or other similar considerations. But because of the same a member may be unable to express his actual belief or the interest of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions.